Network Rail Infrastructure, R. v

For sentencing a corporate health and safety offender, the relevant causal enquiry is whether the offence increased the risk of an accident of the kind that occurred. It does not require proof that the offence was the direct cause of the accident or that compliance would certainly have prevented it. Actual harm and foreseeable harm are both relevant to seriousness.

Where an organisation receives public funding, the material consideration is whether a fine will significantly impair public services, rather than the source of its funds. A severe fine for serious systemic failures causing two deaths is not manifestly excessive merely because it is high by comparison with earlier cases.

The appellant, the infrastructure controller of the railway network, pleaded guilty to an offence under section 3 of the Health and Safety at Work Act 1974. Two workers were killed when a road rail vehicle reversed into them during overnight rail-delivery works.

The sentencing judge found systemic failures in the planning and exchange of method statements. The appellant had assessed the rail delivery train as operating in isolation and had failed to appreciate the risk of a road rail vehicle working alongside it. A fine of £666,667 and £50,000 prosecution costs were imposed on 26 October 2009.

The appeal challenged causation, comparative culpability, the relevance of public funding, and the amount of the fine.

1. Appeal dismissed. The sentencing judge was entitled to find that the appellant’s systemic failures materially contributed to the risk that eventuated. The immediate negligence of those operating the road rail vehicle did not displace the appellant’s responsibility.
2. The correct enquiry was whether, but for the offence, the risk of an accident of this kind would have been reduced. It was unnecessary to determine that the offence was a direct cause of the deaths, or that compliance with the appellant’s statutory responsibilities would certainly have prevented them. Actual harm and foreseeable harm were both relevant to sentence under section 143(1) of the Criminal Justice Act 2003.
3. The judge was entitled to regard the appellant as more culpable than the principal contractor. The appellant bore overall responsibility for rail delivery train operations, yet had planned them as a stand-alone activity. It had not ensured that those approving method statements understood the practice on site, that relevant method statements were exchanged, or that contractors understood the risks of the delivery operation.
4. Comparison between fines imposed on a large organisation and ordinary employees of ordinary means was unreal. The relevant consideration concerning public funding was whether the fine would significantly affect public services. There was no evidence that this fine would do so.
5. The fine was severe, particularly against earlier cases, but the failures were significant and resulted in the deaths of two workers. It was not so severe that appellate intervention was justified.

• Court of Appeal (Criminal Division). The appeal against sentence was dismissed: [2010] EWCA Crim 1225.
• Sentencing court. On 26 October 2009, it imposed a fine of £666,667 and ordered £50,000 prosecution costs for the section 3 offence.